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Aaron Sanders v. Aref Fakhoury

July 13, 2012

AARON SANDERS, PETITIONER,
v.
AREF FAKHOURY, RESPONDENT.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Petitioner is a former state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner served a sentence of four years in prison after a jury convicted him on one count of possession of marijuana for sale. Petitioner raises five claims: (1) the trial court erred by limiting instructions on California's Compassionate Use Act (California's medical marijuana law); (2) key evidence was destroyed by the arresting officer in violation of California Penal Code §§ 135 and 135.5; (3) marijuana seized from petitioner that was booked into evidence was later tampered with by law enforcement officers in violation of California Penal Code §§ 141(a) and (b); (4) the search conducted of petitioner's person violated the Fourth Amendment; and (5) petitioner's conviction stemmed from "illegal profiling." Both petitioner and respondent consented to the jurisdiction of a United States Magistrate Judge in this case. Dckt. Nos. 8, 13. For the reasons stated herein, the federal habeas petition is denied.

I. FACTUAL BACKGROUND*fn1

With the use of a surveillance camera, Sacramento City Police Officer Larry Borja observed defendant, who was sitting on a bench in a "high narcotic area," reach into his right inside jacket pocket and hand something to an individual who had just walked up to him. The individual handed defendant something, which he placed in the same jacket pocket. The individual then walked away.

Defendant was detained and handcuffed. When he was asked by Officer Borja if he had identification, defendant motioned to the right side of his jacket. In defendant's inside right jacket pocket, Officer Borja found a $100 bill and two small baggies containing just under five grams of marijuana. An additional 49 small Ziploc baggies containing a total of 47.4 grams of marijuana were located in defendant's outside jacket pocket. A small scale and two more baggies of marijuana containing a total of approximately 120 grams of marijuana were found inside a paper bag in defendant's backpack. The total weight of marijuana discovered during the search was approximately six ounces. In addition to the $100 bill found in defendant's jacket pocket, defendant had $1,000 in the coin pocket of his pants, consisting of five $100 bills, one $50 bill, twenty-two $20 bills and a $10 bill. Defendant also had a bottle of insulin and a syringe. In addition, defendant had a cannabis buyer card and "recommendation paperwork for marijuana." The search did not reveal any pipes, rolling papers or other items that could be used to ingest marijuana.

At defendant's trial, an expert on the sale and use of marijuana testified that the large number of individual Ziploc baggies in defendant's possession each containing about one gram of marijuana-an amount that would sell for $15 to $20 each in a "quick sale"-indicated the marijuana was possessed for sale rather than personal use. The fact that defendant had multiple $20 bills suggested the bills were proceeds from transactions involving these quantities. Other factors suggesting the marijuana was possessed for sale included the quantity of marijuana combined with the amount of money in defendant's possession and the fact that he did not live in the area, the presence of a scale, the absence of any items for ingesting marijuana, and defendant's involvement in what appeared to be a hand-to-hand sale in an area of high narcotics traffic. The expert was presented a hypothetical based on the facts preceding defendant's detention and testified that he was "[a] hundred percent" certain the marijuana was possessed for purposes of sale.

An expert on the medical use of marijuana testified for the defense that marijuana is used primarily for the control of pain in the treatment of a number of medical conditions, including diabetes. The expert testified that California law permits possession of up to eight ounces of marijuana "if you're a legitimate patient." He explained that one of the ways to obtain marijuana was from a club or dispensary, where quantities ranging from a gram to a pound are sold in Ziploc bags. Such clubs sell marijuana of varying quality, as lower quality marijuana can be used for cooking or making tea. The expert confirmed that defendant was "an insulin-dependent diabetic with long-term complications" and that he had received a formal recommendation for the use of marijuana. According to the expert, the marijuana found in one of the baggies in defendant's backpack was lower quality marijuana and was consistent with use for oral ingestion. The other baggie of marijuana found in defendant's backpack had rotted from moisture, suggesting it, too, had probably been lower quality marijuana. The marijuana contained in the 49 baggies was higher quality marijuana and was most likely meant to be smoked. The expert testified that the amount of marijuana defendant had in his possession could have been a patient's one-month supply. It was his opinion that the packaging of the marijuana was not necessarily indicative of possession for sale, as it is not uncommon for patients to separate their marijuana into smaller portions to keep track of the doses.

II. APPLICABLE LAW FOR HABEAS CORPUS

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Also, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).*fn2 It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:

A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is ...


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